Crackers put Australian software secrets to auction

By David AdamsMay 20 2003
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An Australian company has hit a brick wall in its efforts to have a guide to
cracking its software barred from the Yahoo! Japan auction site.

The company, SWiSHzone, sells Flash animation tools online and has about
160,000 customers, some 20 per cent of them in Japan. Last September it learned
that a "step-by-step'' guide showing where cracked versions of its flagship
SWiSH2 suite (available for trial as shareware) could be downloaded was being
auctioned on a Yahoo! Japan website.

SWiSHzone chief operating officer Hugh Boyd said Yahoo! Japan had told his
company's lawyers that because sellers signed documents saying they would not
engage in illegal activities, Yahoo! Japan was not responsible for their
actions.

SWiSHzone's attempts to contact the anonymous auctioneer via email were
unsuccessful in preventing the auction and because Yahoo! Japan is a separate
company, Yahoo! in the US and Australia were unable to help. Boyd said the
auction continued to appear on Yahoo! Japan's website over the following
months.

Boyd said that while the sale of cracked software was not uncommon, auction
sites had previously been responsive to their concerns. But he conceded that the
speed with which software is cracked is "an indication of your level of
popularity".

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He said the company had to balance the usability of the product against
protecting it against cracking.

Patrick Fair, a partner at legal firm Baker & McKenzie's information
technology group, said that Japan is a signatory to the WIPO Copyright Treaty of
1996. He said that in some jurisdictions a company that fails to prevent the
auction of illegal material after being notified of concerns leaves itself open
to legal action, but he did not know what legislation, if any, Japan had passed
on the issue.

Fair, a former chairman of the Internet Industry Association, said that under
Australian law, there were problems with the argument that providing information
on how to crack software was encouraging a copyright infringement.

He said industry associations were a good place for a small business to start
when it came to issues such as that facing SWiSHzone.com, and that people facing
copyright problems overseas could also seek help from the Department of Foreign
Affairs and Trade.